Hawbir Muhammadi, R (on the application of) v Liverpool City Council

At the permission stage of an age-assessment judicial review, the central question is whether the claimant’s age, assessed objectively on all relevant and subsequently available evidence, could properly be determined differently at a contested factual hearing. The court does not ask only whether the local authority’s assessment was reasonable on the material then available.

Conventional public-law criticisms are subsumed within the objective age assessment, although flaws in the decision-making process may reduce the weight given to the local authority’s conclusion. A claim is arguable where its evidence, taken at its highest, could properly establish that the claimant is a child. Such a claim will generally be transferred to the Upper Tribunal for a fresh factual determination.

The claimant, an unaccompanied asylum-seeking young person from Iran, challenged Liverpool City Council’s assessment that he was an adult. The assessment followed a brief two-stage interview by two social workers, who relied on matters including credibility, physical appearance and demeanour.

Permission for judicial review had previously been refused on the papers. On renewal, the claimant relied on procedural unfairness in the minded-to process, an allegedly unlawful approach to credibility, and excessive reliance on appearance. He also sought to amend the claim to include an age declaration and referred to subsequent evidence.

The issues were whether the pleaded claim was confined to conventional supervisory-review grounds, whether the evidence met the permission threshold, and whether the claim should proceed to a substantive fact-finding hearing.

1. Outcome. Permission for judicial review was granted. The costs order made on the papers was set aside, and the claim was transferred to the Upper Tribunal for a fresh factual determination.
2. The question whether an asylum seeker is a child is an objective question of fact for a substitutionary judicial review, assessed on all relevant evidence, including evidence subsequently available. The permission test was whether there was a factual case which, taken at its highest, could properly succeed at a contested factual hearing: [2011] EWCA Civ 59.
3. Conventional judicial-review grounds are subsumed within the objective age assessment, but remain relevant to the weight placed on the local authority’s conclusion: [2015] EWHC 1942 (Admin). A pleaded criticism may therefore have traction as part of the factual merits challenge even if it would not, standing alone, establish a conventional public-law error.
4. The credibility challenge was arguable. In the absence of documentary evidence, the starting point is the credibility of the claimant’s own evidence, including whether apparent inconsistencies can be explained: [2012] EWCA Civ 547. The claimant’s background, lack of schooling and unfamiliarity with birthdays made it possible that his answers were genuine. The evidence also raised an arguable issue about reliance on appearance and demeanour, matters recognised as unreliable: [2020] EWHC 109 (Admin).
5. The minded-to procedure raised an arguable process concern. Its purpose is to identify concerns and give the claimant a genuine opportunity to answer them before a decision is made: [2022] EWHC 1924 (Admin). The written record could be read as communicating a concluded refusal rather than provisional concerns, particularly where the claimant was a young person communicating through an interpreter.
6. The Upper Tribunal could consider potentially relevant subsequent evidence and the claimant’s oral evidence under its own case-management powers. The court did not formally admit the putative fresh evidence at the permission stage.

Permission for judicial review was refused on the papers on 12 May 2023. On renewal, the Administrative Court granted permission and transferred the claim to the Upper Tribunal for a fresh factual determination.